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Good Afternoon,

Please find our summaries of the civil decisions of the Court of Appeal for Ontario for the past week. Topics covered included wrongful dismissal, custody/relocation, equalization of net family property, charging orders under the Solicitors Act, rental vehicle insurance coverage.

On Thursday evening, it was my honour and pleasure to chair the 2019 OBA Annual Award of Excellence in Civil Litigation Dinner. Congratulations once again to Guy Pratte, a most deserving and worthy recipient of the Award, and a true gentleman. Thank you to all the dignitaries, judges, special guests and attendees for making it such a worthwhile and fun evening. I hope you all enjoyed the event as much as I did. A special thank you to Terrine Bird, Angela Moutoulas and Adela Mall at the OBA for the great job they did in pulling off such a well-organized and classy event. Finally, thank you to my colleagues at Blaneys for their participation and support. For anyone who is interested in seeing how much fun we all had, the OBA Award Dinner gallery can be viewed here.

John Polyzogopoulos
Blaney McMurtry LLP
416.593.2953 Email

Table of Contents

Civil Decisions

Province Estate v Province, 2019 ONCA 912

Keywords: Family Law, Equalization of Net Family Property, Procedural

Ontario Corporation Number 1009329 (Enterprise Rent-A-Car) v Intact Insurance Company, 2019 ONCA 916

Keywords: Torts, Negligence, MVA, Contracts, Car Rental Agreements, Insurance Law, Automobile Insurance, Priority Dispute, Insurance Act, RSO 1990, c 1.8, s 277, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, Enterprise Rent-a-Car Canada Ltd. v Meloche Monnex Financial Services Inc., 2010 ONCA 277

Artichuk-Murphy v Murphy, 2019 ONCA 921

Keywords: Family Law, Custody and Access, Child Support, Fresh Evidence, Gordon v Goertz, [1996] 2 SCR 27, R v Palmer, [1980] 1 SCR 759

Bouchard c Conseil des écoles catholiques du Centre-Est, 2019 ONCA 922

Keywords: Employment Law, Wrongful Dismissal

Robins Appleby LLP v Todd Family Holdings Inc., 2019 ONCA 920

Keywords:Contracts, Debtor-Creditor, Solicitor and Client, Charging Orders, Weenan v Biadi, 2018 ONCA 288, Solicitor’s Act, RSO 1990, c S-15, s 34(1)

Short Civil Decisions

Rumanek & Company Ltd. v Abuomar, 2019 ONCA 908

Keywords: Real Property, Partition and Sale, Civil Procedure, Jurisdiction, Partition Act, RSO 1990, c P4, s 7

Jolicoeur v 1154479 Ontario Inc., 2019 ONCA 913

Keywords: Civil Procedure, Simplified Procedure, Jurisdiction

Jamshidi v Dependable Mechanical Systems Inc., 2019 ONCA 923

Keywords: Employment Law, Summary Judgment, Quantum meruit,Wasauksing First Nation et al. v Wasausink Lands Inc. et al(2004), 184 OAC 84 (CA)

Criminal Decisions

R v RS, 2019 ONCA 906 (Publication Ban)

Keywords: Criminal Law, Sexual Assualt, Preliminary Inquiry

R v WCH, 2019 ONCA 910 (Publication Ban)

Keywords: Criminal Law, Sexual Assault, Fresh Evidence

R v E, 2019 ONCA 918 (Publication Ban)

Keywords: Criminal Law, Sexual Offences, Uttering Threats, Sentencing

R v S, 2019 ONCA 914

Keywords: Criminal Law, Trafficking, Canadian Charter of Rights and Freedoms, Section 8

R v S-D, 2019 ONCA 917

Keywords: Criminal Law, Break and Enter, Sentencing, Judicial Notice

R v T, 2019 ONCA 919

Keywords: Criminal Law, Fraud, Forgery, Obstruction of Justice

United States v L, 2019 ONCA 915

Keywords: Criminal Law, Extradition, Trafficking, Extradition Act, SC 1999, c 18, s 57, America v Cavan, 2015 ONCA 664, R v Larabie(1988), 42 CCC (3d) 385 (Ont HC)

Ontario Review Board Decisions

A (Re), 2019 ONCA 907

Keywords: Ontario Review Board, Detention Order

O (Re), 2019 ONCA 911

Keywords: Ontario Review Board, Detention Order


CIVIL DECISIONS

Province Estate v Province, 2019 ONCA 912

[Pepall, Tulloch, and Benotto JJA]

Counsel:

P Ledroit, for the appellant

J Szaefer, for the respondent

Keywords: Family Law, Equalization of Net Family Property, Procedural

facts:

The appellant, JP appeals an order concluding a matrimonial proceeding which provides, among other things, for an equalization payment of $410,000 plus 4% interest per year. In the midst of the proceedings, JP murdered his wife.

issues:

1) Did the lower court proceed in a manner which lacked procedural fairness?

2) Did the trial judge err by relying on a net family property statement that was prepared for a settlement conference?

3) Did the trial judge err by granting an unequal equalization payment?

4) Did the trial judge err by failing to adjust child support and unfreeze the respondent’s assets?

holding:

Appeal Dismissed.

reasoning:

1) No. There was no procedural unfairness. The appellant repeatedly disobeyed court orders for child support, non-dissipation, and financial disclosure. He asked for and received ten adjournments. The lack of reasons by the case management judge is immaterial because they can be found in the history of the case and continuing record.

2) No. It was reasonable for the judge in the circumstances to rely on the appellant’s sworn net family property statement.

3) No. The decision to award an unequal division of net family property was entirely discretionary and justified.

4) No. There was no basis on which to adjust child support.


Ontario Corporation Number 1009329 (Enterprise Rent-A-Car) v Intact Insurance Company, 2019 ONCA 916

[Rouleau, Huscroft, and Nordheimer JJA]

Counsel:

R Love and T Hassan, for the appellant

J Heeney and S Cheskes, for the respondent

Keywords: Torts, Negligence, MVA, Contracts, Car Rental Agreements, Insurance Law, Automobile Insurance, Priority Dispute, Insurance Act, RSO 1990, c 1.8, s 277, Ledcor Construction Ltd. v Northbridge Indemnity Insurance Co., 2016 SCC 37, Enterprise Rent-a-Car Canada Ltd. v Meloche Monnex Financial Services Inc., 2010 ONCA 277

facts:

AP was involved in a motor vehicle accident while driving a rental car owned by the appellant, Enterprise Rental Car (“Enterprise”). At the material time, AP was living with her parents and was a “listed driver” under a standard Ontario Automobile Policy (“OAP1”) issued to her father by the respondent, Intact Insurance (“Intact”). AP was not a “named insured” under the OAP1.

AP was named as a defendant in the action arising from the accident and a priority dispute arose as to whether Enterprise’s insurer or Intact was the “first loss” insurer. Enterprise agreed to defend AP in the action under a Reservation of Rights agreement until the priority dispute was resolved. After the action settled, Enterprise brought an application for a declaration that Intact was the first loss insurer and sought an order that it be reimbursed by Intact for defending the action.

The application judge dismissed Enterprise’s claim on the basis that the coverage under the OAP1 issued by Intact was not available to AP when driving the rental car and thus the priority provisions in the Insurance Act did not apply. Consequently, liability fell to Enterprise’s insurer as the first loss insurer. The Divisional Court upheld the decision on appeal. Enterprise appealed.

issues:

Did the application judge and the Divisional Court err in concluding that the priority provisions under s 277 of the Insurance Act did not apply?

holding:

Appeal Dismissed.

reasoning:

No. The application judge and Divisional Court made no such error. The court held that the priorities under the Insurance Act depend on the existence of coverage under the policy of insurance. In other words, while s. 277(1.1) establishes priorities amongst insurers, it does not create insurance coverage where none is available. In the instant case, the court found that there was no coverage available to AP under the OAP1 issued by Intact. In making this finding, the court observed that liability coverage for rental vehicles was only available under the OAP1 when the vehicle in question was rented by the named insured or a spouse who lived with the named insured. Here, the named insured was AP’s father. Since AP was neither the named insured nor his spouse, it followed that she was not covered by the OAP1 when driving rental vehicles. This interpretation was confirmed by the existence of a separate optional endorsement which provided rental vehicle coverage to listed drivers but which was not purchased in the instant case. The court reasoned that there would be no purpose for this endorsement if listed drivers were covered under the OAP1.

The court ultimately held that in the absence of rental vehicle coverage, the priority rules established in ss. 277(1.1)(1) and 277(1.1)(2) had no relevance. Consequently, as was concluded by the application judge and Divisional Court, responsibility for coverage fell to Enterprise’s insurer under s. 277(1.1)(3).


Artichuk-Murphy v Murphy, 2019 ONCA 921

[Simmons, Huscroft, and Nordheimer JJA]

Counsel:

J Stanchieri and R Healey, for the appellant

TM, acting in person

Keywords: Family Law, Custody and Access, Child Support, Fresh Evidence, Gordon v Goertz, [1996] 2 SCR 27, R v Palmer, [1980] 1 SCR 759

facts:

Appellant appeals from an order awarding sole custody of her daughter to the respondent and from the trial judge’s adjustment to the payment, by the respondent, of s. 7 expenses. The trial judge had concluded that it would be in the best interests of the child to reside with the respondent in Nova Scotia.

The appellant argued that the trial judge erred: (i) in not applying the test in Gordon v Goertzbefore deciding to remove daughter from Ontario; (ii) in relying upon the opinion evidence of the Office of the Children’s Lawyer (OCL) since it was not proffered as expert evidence on the subject of alienation; and (iii) limiting the respondent’s contribution to hockey expenses of the son in exchange for requiring the respondent to contribute to the travel costs associated with providing access to the daughter for the appellant.

The appellant also brought a motion to introduce fresh evidence.

issues:

1) Did the trial judge err in failing to apply the test in Gordon v Goertzwhen deciding custody?

2) Did the trial judge err in relying on the OCL’s expert evidence?

3) Did the trial judge err in reducing the section 7 expenses?

holding:

Appeal and motion dismissed.

reasoning:

1) No. First, it is not clear that the factors in Gordon v. Goertzshould be strictly applied because this was an originating process as opposed to a motion to vary. Second, the trial judge considered all of the factors that he ought to have considered before reaching the conclusion that he did. His decision was based on the best interests of the child and that is the ultimate determining factor.

2) No. Expert evidence is not required in this regard. Rather, the evidence of the investigator was of her factual observations which the trial judge was entitled to take into account in reaching his conclusions.

3) No. It was within the judge’s authority to balance these expenses.

The motion to introduce fresh evidence was dismissed on basis that it would not affect the result.


Bouchard c Conseil des écoles catholiques du Centre-Est, 2019 ONCA 922

[Hoy, Roberts, and Harvison Young JJA]

Counsel:

CB, in person

S Lorquet and S Arsenault, for the respondents

Keywords: Employment Law, Wrongful Dismissal

facts:

The appellant appeals the decision of the trial judge who rejected his action for wrongful dismissal and inducing breach of an employment contract. From March 7, 2005, to his termination, the appellant worked as a cultural coordinator at a school part of the respondent school board. From 2008 to 2012, the appellant was the object of four formal and progressive disciplinary measures as well as numerous warnings given in meetings and through email correspondence. The respondent school board ultimately terminated him, alleging just and sufficient cause. According to the respondent school board, the appellant maintained a defiant behaviour and attitude towards his supervisors, refusing to execute certain tasks assigned to him and central to his position, such as the planning and execution of “flash” activities in the cafeteria. His lack of professionalism and disrespectful tone was also mentioned to him on many occasions, without improvements on his part.

The appellant maintains he met the objectives of his position and was always respectful in dealing with his colleagues and supervisors.

issue:

Did the trial judge make a palpable and overriding error in her findings regarding the facts and the credibility and reliability of the witnesses?

holding:

Appeal dismissed.

reasoning:

The Court found that the trial judge carefully considered the entirety of the relevant evidence in a just and impartial manner. She clearly outlined why she preferred a certain version when deciding between divergent testimonies, and explained why she preferred the version of events as presented by the respondents.

Robins Appleby LLP v Todd Family Holdings Inc., 2019 ONCA 920

[van Rensburg, Paciocco, and Thorburn JJA]

Counsel:

G Sugar, for the appellants Todd Family Holdings Inc. and GMS Law Professional Corp.

E Gersh and J Jamil, for the respondent

Keywords: Contracts, Debtor-Creditor, Solicitor and Client, Charging Orders, Weenan v Biadi, 2018 ONCA 288, Solicitor’s Act, RSO 1990, c S-15, s 34(1)

facts:

Robins Appleby LLP (“Robins”) represented Todd Family Holdings Inc. (“TFH”) in a lawsuit against Mr. G. Robins attempted to get off the record, mid-trial, for non-payment of fees but was ordered to continue. Despite the rift, Robins successfully pursued the lawsuit, securing a judgment of $2.2 million, and a massive costs award approaching $1 million. After trial, Robins was released as counsel of record.

After continued non-payment of fees by TFH, Robins obtained a charging order and summary judgment for unpaid fees (“fee judgment”).

GMS Law Professional Corporation (“GMSL”) is now acting for TFH in continuing litigation pursuant to a contingency fee agreement. In the course of that continuing litigation, GMSL secured a costs award against Mr. G in connection with a motion. Robins discovered this and issued 16 notices of garnishment, allegedly to intercept the costs owed to TFH.

In response to the notices of garnishment, TFH and GMSL brought a motion seeking:

i) A declaration that GMSL has a charging order or lien pursuant to s 34(1) of the Solicitor’s Act, (“charging order”);

ii) A declaration that the GMSL charging order has priority over Robins’ charging order;

iii) An order vacating the notices of garnishment; and

iv) A sealing order.

Robins did not admit that it improperly disclosed confidential information, but consented to the sealing order. After a contested motion on the remaining issues, the other relief sought by TFH and GMSL in the motion was denied. TFH and GMSL appealed.

issues:

1) Did the motion judge err in not granting the charging order to GMSL?

2) Did the motion judge err in refusing to vacate the garnishment notices?

holding:

Appeal dismissed.

reasoning:

1) No. The motion judge denied the charging order because she was not satisfied that there was evidence that TFH cannot or will not pay GMSL’s fees. Such a finding, including a finding that it is likely that the fees will not be paid without a lien or charging order, is a prerequisite to a charging order: Weenan v. Biadi. Moreover, depending on the terms of the contingency agreement, there may be no fees due and payable, or the agreement may make the risk of non-payment negligible. The terms of the contingency agreement were not proved by TFH and GMSL, who bore the burden of proving an inability to pay. As a result of the Court affirming the motion judge’s decision, there was no need to address the priority dispute.

2) No. The motion judge found that TFH had not established that enforcement of the fee judgment (garnishment) would impede TFH’s ability to maintain the action or contravene the continued duty of loyalty Robins owes to Todd. Former lawyers have no control over the conduct or completion of the action and should not have to wait indefinitely for outstanding fees. Absent exceptional circumstances, enforcing payment pending completion of the action will not be inconsistent with the ongoing duty of loyalty or put the lawyer in an adversarial position relating to the previous retainer.

The Court did grant leave to appeal the costs order, but denied the costs appeal. The motion judge was not obliged to treat success on the motion as divided, or to split responsibility for costs on this basis.


SHORT CIVIL DECISIONS

Rumanek & Company Ltd. v Abuomar, 2019 ONCA 908

[Simmons, Pardu, and Nordheimer JJA]

Counsel:

MA, acting in person

H E-R, acting in person

T Morgan, for the respondent

Keywords: Real Property, Partition and Sale, Civil Procedure, Jurisdiction, Partition Act, RSO 1990, c P4, s 7

Jolicoeur v 1154479 Ontario Inc., 2019 ONCA 913

[Pepall, Tulloch, and Benotto JJA]

Counsel:

JS Winny, for the appellants

MT Kelly, for the respondent

Keywords: Civil Procedure, Simplified Procedure, Jurisdiction

Jamshidi v Dependable Mechanical Systems Inc., 2019 ONCA 923

[Pepall, Tulloch, and Benotto JJA]

Counsel:

K Marshall, for the appellant

DE Atwell, for the respondents

Keywords: Employment Law, Summary Judgment, Quantum meruit,Wasauksing First Nation et al. v Wasausink Lands Inc. et al (2004), 184 OAC 84 (CA)


CRIMINAL DECISIONS

R v RS, 2019 ONCA 906 (Publication Ban)

[Doherty, Watt, and Trotter JJA]

Counsel:

AD Gold and AN Weisberg, for the appellant NN

M Halfyard, for the appellants KH, MS, and MG

M Lacy, D Brown, and K Ginn, for the intervener Criminal Lawyers’ Association

Keywords: Criminal Law, Sexual Assualt, Preliminary Inquiry

R v WCH, 2019 ONCA 910 (Publication Ban)

[Hoy ACJO, Doherty, and Zarnett JJA]

Counsel:

J Heller, for the appellant

J Stuart, for the respondent

Keywords: Criminal Law, Sexual Assault, Fresh Evidence

R v E, 2019 ONCA 918 (Publication Ban)

[Hourigan, Brown, and Paciocco JJA]

Counsel:

M Salih, for the appellant

PG Cowle, for the respondent

Keywords: Criminal Law, Sexual Offences, Uttering Threats, Sentencing

R v S, 2019 ONCA 914

[Lauwers, van Rensburg, and Hourigan JJA]

Counsel:

SS, in person

M Savard, duty counsel

V Goela, for the respondent

Keywords: Criminal Law, Trafficking, Canadian Charter of Rights and Freedoms, Section 8

R v S-D, 2019 ONCA 917

[Simmons, Watt, and Miller JJA]

Counsel:

M MacGregor, for the appellant HSD

M Martin and D Reeve, for the appellant JH

M Petrie, for the respondent

Keywords: Criminal Law, Break and Enter, Sentencing, Judicial Notice

R v T, 2019 ONCA 919

[Watt, Huscroft, and Trotter JJA]

Counsel:

JT, acting in person

K Rawluk, for the respondent

Keywords: Criminal Law, Fraud, Forgery, Obstruction of Justice

United States v L, 2019 ONCA 915

[Strathy CJO, Doherty, and Tulloch JJA]

Counsel:

B Greenshield, for the applicant

A Rice, for the respondent

Keywords: Criminal Law, Extradition, Trafficking, Extradition Act, SC 1999, c 18, s 57, America v Cavan, 2015 ONCA 664, R v Larabie(1988), 42 CCC (3d) 385 (Ont HC)


ONTARIO REVIEW BOARD DECISIONS

A (Re), 2019 ONCA 907

[Hoy CJO, Doherty, and Zarnett JJA]

Counsel:

A Szigeti, for the appellant

N de Montigny, for the respondent

Keywords: Ontario Review Board, Detention Order

O (Re), 2019 ONCA 911

[Hoy ACJO, Doherty, and Zarnett JJA]

Counsel:

OB Vincents, for the appellant

G Furmaniuk and M Warner, for the respondent

Keywords: Ontario Review Board, Detention Order


The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.

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Photo of John Polyzogopoulos John Polyzogopoulos

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with…

John has been the editor of Blaneys Appeals since the inception of the blog in the Summer of 2014. He is a partner at the firm with almost two decades of experience handling a wide variety of litigation matters. John assists clients with matters ranging from appeals, to injunctions, to corporate, breach of contract, construction, environmental contamination, product liability, debtor-creditor, insolvency and other business litigation. He also handles professional discipline and professional negligence matters, as well as complex estates and matrimonial litigation. In addition, John represents amateur sports organizations in contentious matters, and advises them in matters of internal governance. John can be reached at 416-593-2953 or jpolyzogopoulos@blaney.com.